Madras High Court
Ran India Steels Private Limited vs The Commissioner Of Central Excise on 17 September, 2014
Author: V.Ramasubramanian
Bench: V.Ramasubramanian
In the High Court of Judicature at Madras Dated : 17.9.2014 Coram : The Honourable Mr.Justice V.RAMASUBRAMANIAN Writ Petition No.25251 of 2014 and MP.Nos.1 and 2 of 2014 Ran India Steels Private Limited, rep. by its Managing Director Mr.R.Radha ...Petitioner Vs 1.The Commissioner of Central Excise (Appeals), Office of the Commissioner of Central Excise, Salem Commissionerate No.1, Foulks Compound, Anaimedu, Salem-1. 2.The Assistant Commissioner of Central Excise, Office of the Commissioner of Central Excise, No.1, Foulks Compound Anaimedu, Salem-1. ...Respondents PETITION under Article 226 of The Constitution of India praying for the issuance of a Writ of Certiorari to call for the records of the respondents in issuing the show cause notice by the second respondent in his proceedings C.No.V/15/72/07/2013CX-ADJ (SCN Sl.No.07/2013 AC Salem-II) dated 7.5.2013 and the Order-in-Original passed by the second respondent made in proceedings No.C.No.V/15/72/07/2013CX-ADJ dated 20.3.2014 and which was confirmed by the first respondent in proceeding (A.No.116/2014-CE) vide Order-in-Appeal No.157/2014-CE dated 14.8.2014 and quash the same. For Petitioner : Mr.S.Senthil Nathan For Respondents : Mr.V.Sundareswaran ORDER
The petitioner has come up with the above writ petition, challenging a show cause notice issued by the second respondent, as confirmed by the order of the first respondent, on appeal.
2. Heard Mr.S.Senthil Nathan, learned counsel for the petitioner. Mr.V. Sundareswaran, learned Standing Counsel takes notice for the respondents.
3. The petitioner was issued with a show cause notice on 7.5.2013 alleging contravention of the provisions of Rule 8 of Central Excise and Valuation (Determination of Value of Excisable Goods) Rules, 2000 read with Section 4 of the Central Excise Act, 1944. The petitioner submitted their objections, after which, the order in original was passed on 20.3.2014. The operative portion of the order passed by the second respondent reads as follows :
"(i) I hold that the valuation adopted by M/s. Ran India Steels Pvt. Ltd., Unit II for removal of their finished goods M.S.Ingots to their own unit M/s.Ran India Steels Pvt. Ltd., Unit I which was used captively for the manufacture of TMT rods with the intention to pass on excess credit during the period April 2008 to March 2013 is liable for rejection for violation of Rule 8 of the Central Excise and Valuation (Determination of Price of Excisable Goods) Rules, 2000 read with Section 4 of the Central Excise Act, 1944.
(ii) For the contravention of the provisions of Central Excise Act and Rules made thereunder, I impose penalty under Rule 26 of the Central Excise Rules, 2002 as stated in para 15 above.
(iii) I impose a penalty of Rs.5,000/- (Rupees five thousand only) under Rule 27 of the Central Excise Rules, 2002 for the contravention of the provisions of Central Excise Act and Rules made thereunder."
4. As against the said order, the petitioner filed an appeal. But, the appeal was dismissed by the first respondent by order dated 14.8.2014. Challenging the said orders, the petitioner is before this Court.
5. But, as against the order of the first respondent, the petitioner has a remedy of appeal under Section 37F of the Act. The appeal lies to the Customs, Excise and Sales Tax Appellate Tribunal.
6. The reason stated by the learned counsel for the petitioner for not availing the alternative remedy of appeal is that under the amended provisions, the petitioner will be made to deposit 10% as a pre-condition for entertaining the appeal and that there is no provision for waiver of pre-deposit condition.
7. The above reason will actually be a reason to bypass the alternative remedy in every case. But, in this case, the petitioner states that for no fault of theirs, for the payment of 110% and without looking into Rule 3 of the CENVAT Credit Rules, 2004, the impugned orders have been passed.
V.RAMASUBRAMANIAN,J RS
8. But, a careful look at the order in original, the operative portion of which, I have extracted above, shows that the amount payable by the petitioner has not been quantified except the penalty amount of Rs.5,000/-. Therefore, the apprehension of the petitioner appears to be illusory.
9. Hence, leaving it open to the petitioner to approach the Customs, Excise and Sales Tax Appellate Tribunal, the writ petition is dismissed. No costs. Consequently, the above MPs are also dismissed.
17.9.2014 Internet : Yes To
1.The Commissioner of Central Excise (Appeals), Office of the Commissioner of Central Excise, Salem Commissionerate, No.1, Foulks Compound, Anaimedu, Salem-1.
2.The Assistant Commissioner of Central Excise, Office of the Commissioner of Central Excise, No.1, Foulks Compound, Anaimedu, Salem-1.
WP.No.25251 of 2014 & MP.Nos.1 & 2 of 2014